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Rosalind English

June 2001

Sally Smith QC for the Respondent

Court of Appeal (Henry and Judge LLJ; Lady Justice Hale)


Article 12 did not grant the right to have a child by means of artificial insemination or surrogacy at public expense


The appellant, a woman of 47, claimed £78,267 in damages from the defendant, whose negligence led to her hystorectomy, in order that she may try to have two children through a surrogacy arrangement.

Although commercial surrogacy arrangements are unlawful in this country, it is not unlawful for a surrogate mother to be paid in return for agreeing to carry and hand over the child.Under the Human Fertilisation and Embryology Act, Section 30, there are certain conditions laid down for surrogacy arrangements to be legal. The commissioning parents must be married to one another, the child must be born as a result of an artificial insemination technique, using the gametes of one or both of the parents, and the surrogate mother must not receive any payment unless authorised by the court.

The court had previously rejected the applicant's claim on the basis that her previous surrogacy contract with a Californian woman had unlawful under English law. In this appeal, the appellant proposed to pursue a surrogacy arrangement which fulfilled Section 30 of the HRE Act, and other conditions laid down by the Human Fertilisation and Embryology Authority (HFEA). This time there were six embryos in storage, each successfully fertilised with the appellant's husband's sperm.  She proposed two cycles of treatment using her own embryos, and if that failed, four cycles of treatment using the surrogate's eggs, and a further three cycles of treatment  to have a second child.

She argued, inter alia, that Article 12 of the Convention entitled her to bear children, and that the payment of her surrogacy expenses was the only way she could do so, thanks to the defendants' negligence.


Appeal refused. The Court of Appeal was not prepared to accept the new evidence and it was not open to the appellant to restart her claim on a quite different basis. Even taking the new evidence (of the fertilised embryos) into account, the Court held that it did not consider that expenditure on surrogacy using donor eggs was reasonable, and the defendant should not be required to fund it. To allow the appeal would have implications for intermediate cases; the court could not choose between the right to bear a child by a surrogacy arrangement using own eggs, on the one hand, versus the right to IVF treatment using donor eggs on the other. To choose between them would be elevate either genetic parentage or the process for carrying and giving birth above the other.

Article 12 did not grant a right to be supplied with a child; R v Secretary for State for the Home Department ex parte Mellor (May 1, 2001) cited.

COMMENT (July 2001)

One of the principles which influenced the court in this case is the basic idea that a claimant seeking damages in tort must give credit for any benefits received. In McFarlane v Tayside Health Board [2000] 2 AC 59 the House of Lords held that a healthy, if initially unwanted, child was such a benefit, which could be taken to cancel out the costs of upbringing. The Court of Appeal did not accept that the damages sought by the appellant was in any sense restorative; surrogacy by donor egg was something quite different to that which she had lost, i.e. the ability to give birth to a child and to perpetuate her own genes.

This is a perfectly sensible conclusion to reach at the present time, when there is still a certain exoticism attached to advanced reproductive techniques and birth arrangements which go beyond the ordinary nuclear family.  The courts have granted damages for IVF treatment in the past (Biles v North East Thames Regional Health Authority, 39 October 1987, cited in Kemp and Kemp vol 2 para F5112; and Riggs v East Dorset Health Authority, Kemp and Kemp F5 022). In this case however it was felt that subsidising the appellant's surrogacy by donor eggs was going too far.

On the other hand, the rights in the Convention, we are constantly told, must evolve to reflect changes in society, and, it is submitted, advances in medicine. It has recently been reported that it will soon be possible for women to "put off" the biological clock by freezing their eggs whilst they are still young but preoccupied with the career ladder, for fertilisation and implantation in later years (New Scientist, 30 June 2001 No 2297 "Stop the Clock", p 38). This is not the stuff of science fiction; it will soon be part of the domain of ordinary choices open to individuals and, as such, will move imperceptibly to being a right. No one would deny that, for example, a state of the computer voice system should be paid for by a health authority whose doctors negligently damaged a patient's vocal chords. He, or she, is not getting back something they have lost; the demand is for something quite different. Put in that way it is hard to distinguish that kind of claim to that put before the Court by Mrs Briody.

Rosalind English, 1 Crown Office Row